(Update: Late Friday, Aug. 18, Rep. Ryan Martinez announced his resignation effective Sept. 1. The following article remains in its original form.)
The latest disagreement between Oklahoma Gov. Kevin Stitt and the office of Attorney General Gentner Drummond involves whether Rep. Ryan Martinez is eligible to continue his term in the Legislature following his Aug. 2 plea agreement on a felony DUI charge.
In a response filing with the Oklahoma Supreme Court on Wednesday, Stitt’s general counsel, Trevor Pemberton, said “state law forces the governor’s hand” and requires him to “issue a writ of election to fill the vacancy in House District 39” because Martinez “entered a plea of guilty to a felony offense.”
But Drummond’s deputy general counsel, Brad Clark, sent an informal letter to House Speaker Charles McCall on Aug. 14, saying “it is my opinion that Rep. Martinez may continue serving as a member of the House of Representatives.”
McCall had requested a formal attorney general’s opinion about Martinez’s eligibility to remain in office, but Clark said he was offering only his personal legal interpretation to expedite a response.
In Clark’s analysis, he wrote that Martinez’s “deferred sentence (…) is not a conviction” and that it should not be construed as such.
“A literal application of Title 51, Section 24.1 [Subsections A, E, F] leads to the imposition of a harsher penalty upon one who has not had pronouncement of guilt for the alleged offense than the sanction to another who has had such a pronouncement,” Clark wrote. “Not only is that an absurd result that could not have been intended, but it is also inconsistent with the principles of our criminal justice system.”
Pemberton, however, referenced Subsection L of the same statute, which reads:
Within three days of the conviction or plea of guilty or nolo contendere of an elected or appointed state officer, the attorney responsible for prosecuting such state officer, shall notify the governor in writing of the suspension, the date of conviction or plea of guilty or nolo contendere resulting in suspension, and the felony committed.
“The only sensible reading of Subsection L makes clear that a ‘plea of guilty’ is the equivalent of a finding of guilt for purposes of [the statute],” Pemberton wrote in a footnote. “That subsection further contemplates action by a prosecuting attorney to facilitate the suspension.”
Pemberton also referenced Title 51, Section 8, which explicitly states that any office “shall become vacant (…) upon entering of a plea of guilty or nolo contendere in a state or federal court of competent jurisdiction for any felony or any offense involving a violation of his official oath.”
Martinez, who serves as vice chairman of the powerful House Appropriations and Budget Committee, did not respond to a request for comment prior to the publication of this article.
Stitt’s office, however, offered a statement.
“Gov. Stitt has an obligation to execute the law. As highlighted in the governor’s filing, Rep. Martinez vacated his seat when he pled guilty to a felony and now the governor must order a special election by Sept. 2,” said Abegail Cave, the governor’s communications director. “Gov. Stitt will follow the law.”
McCall issued his own statement, saying he would rely on Clark’s letter from the Office of the Attorney General.
“I asked Attorney General Drummond’s office to review the issue and his office provided a letter of counsel to the House confirming that Rep. Martinez is able to continue serving,” McCall said.
Former GOP Rep. Michael Reynolds filed an application Aug. 4 for the Oklahoma Supreme Court to assume original jurisdiction and declare Martinez’s seat vacated. Reynolds named Stitt, Martinez and McCall as defendants.
“If the governor does not call a special election he violates his constitutional duty to cause all laws of the state to be faithfully executed,” Reynolds wrote in his petition.
The court noted that Martinez (R-Edmond) and McCall (R-Atoka) — close allies in the Oklahoma House — have until Aug. 30 to reply. In Pemberton’s response, he wrote that Stitt has until Sept. 2 to issue a writ calling for a special election.
Despite calling Stitt ‘racist,’ Martinez suggested contacting him during arrest
Over the past 15 months, Ryan Martinez and Kevin Stitt have been connected in political news coverage on two occasions.
In May 2022, Martinez called Stitt “hateful” and “racist” from the House floor during a veto override on HB 3501, which allows the Oklahoma Department of Public Safety to revoke driver’s licenses based on traffic offense convictions in tribal courts. Ultimately, the House and Senate overrode Stitt’s veto, allowing the bill to become law.
“With the governor vetoing this important bill, would it be safe to make the assumption that his racist and hateful behavior towards the tribes of this state is getting in the way of good public policy to protect Oklahomans?” Martinez asked another legislator May 27, 2022.
Exactly five months later, a woman called 9-1-1 to report that a man was so intoxicated at an Edmond bar that he had been denied service and fell into a wall while trying to leave. Police responded and found Martinez in his SUV outside of The Patriarch.
In the minutes before he was arrested for actual physical control of a vehicle while intoxicated, Martinez made a series of false statements to Edmond officers. He initially misled officers about where he had been and how many drinks he had consumed, minimized the distance he was planning to drive home, falsely stated the Legislature was in “probably like three special sessions,” and claimed lawmakers “can’t be detained” if the Legislature is in session.
Officers called colleagues to confirm that Martinez’s interpretation of Article 5, Section 22 — which prohibits the detention of legislators going to or returning from the State Capitol for the purposes of voting — was erroneous. While they waited, Martinez offered to call then-Attorney General John O’Connor or Stitt for reference. Ultimately, he was arrested.
Former Oklahoma County District Attorney David Prater charged Martinez with felony DUI because it marked his second driving under the influence offense within 10 years. On Aug. 2, new Oklahoma County District Attorney Vicki Behenna struck a deferred sentence agreement with Martinez, placing him on unsupervised probation for one year. He agreed to pay $1,000 in court costs and have an alcohol interlock device installed in his vehicle for six months.
Because the plea agreement involved a deferred sentence, Martinez has not yet formally been convicted in the case. Oklahoma law permits a court to accept a guilty plea and, prior to entering a judgment of guilt, create conditions for deferral of the prosecution. If the defendant completes those conditions to the court’s satisfaction, the plea can be withdrawn without a judgment of guilt being entered.
But in his filing before the Supreme Court, Stitt’s general counsel said Title 51, Section 8 — which outlines six events triggering vacation of an office, including both convictions and guilty pleas — makes those nuances moot.
“Two questions may be looming. The first is whether it matters that the representative pleaded guilty to a felony but received only a deferred sentence. It does not,” Pemberton wrote. “Neither the vacation nor the forfeiture provisions make any relevant mention of punishment stemming from a guilty plea. Had the Legislature intended for punishments, deferred or otherwise, to play a role in the analysis, it would have said as much.”
In his letter asserting Martinez remains eligible to stay in office, Clark does not reference Title 51, Section 8, instead relying primarily on interpretation of Title 51, Section 24.1.
“In 2007, this office concluded that Section 24.1 has always contained language limiting its application to convictions that occur while a state officer is in office. This determination also indicates that there has been a pronouncement that the misconduct occurred,” Clark wrote. “One who is ‘pleading guilty’ is entering a plea of guilty without judgment. If all conditions are met at the end of the probation period, the conditional order will be withdrawn without a court judgment of guilt and the court orders the plea of guilty to be expunged from the record.”
Even if Martinez is deemed eligible to remain in office for the remainder of his current two-year term, state statute would appear to deem him ineligible to seek reelection in 2024.
Title 26, Section 5-105a of Oklahoma statutes says that “any person who has entered a plea of guilty or nolo contendere to [a felony] crime shall not be eligible to be a candidate for or to be elected to any state (…) office or any other elective office of any political subdivision of this state for a period of 15 years following completion of his sentence or during the pendency of an appeal of such conviction or plea.”
Martinez has represented House District 39 since 2016. He was reelected by default during the 2022 election cycle after no other candidate filed to run for the seat.
Read Brad Clark’s letter regarding Ryan Martinez
https://nondoc.com/wp-content/uploads/2023/08/2023-08-14-AG-office-Brad-Clark-letter-on-Ryan-Martinez-Z-25.pdf” viewer=”google”]
